Zoe Hodge, Senior Associate, is an experienced private client solicitor with a particular interest in Court of Protection matters. In recent months, Zoe has been answering some frequently asked questions to assist Attorneys and Deputies appointed under powers of attorney in fulfilling their duties and staying within the parameters of their authority.
Can I (as an Attorney) move the donor into my house and use their money to build an extension?
First, you need to work through the five main principles of the Mental Capacity Act 2005 (see our blog here regarding Attorneys Rights and Responsibilities) to determine whether you can make such a decision on behalf of the donor. Then you need to look at the options available some of which are discussed below.
Can you move the donor into your house?
This is a health and welfare decision, and you must be able to show it is in the donor’s best interests to do so. Have you considered the donor’s needs, now and in the future? Are you best equipped to deal with those needs? Are there other options you need to consider such as live in carers or a residential care home? You should document your thought process and why you have reached the conclusion you have.
Can you use the donor’s money to build an extension?
This is more complicated and is likely to need Court permission. An Attorney / Deputy cannot profit from their appointment. If you are using the donor’s money to extend your property (even for the donor to live in) you could be seen as benefitting personally from the increase in value that extension creates.
You may be able to create a legal document confirming that the donor now owns a proportion of your property to avoid the non-profit rule however in practice this may cause difficulties down the line e.g. with mortgages.
Practical considerations
Before entering into such arrangements, it’s important to think through the practical considerations that may arise, including:
- What happens if living with the donor does not work out the way you both hoped? How would the donor be able to extract their money to provide alternative accommodation?
- What happens if the care needs of the donor change and you are no longer able to care for them or have the means to pay for external carers?
- What does the donor’s Will say? Have they left their estate or a portion of it to someone other than you? How will you raise the funds which are locked up in your home to settle the terms of the Will?
Conclusion
You should seek legal advice before you begin the process of moving the donor into your home. It is likely that a Court of Protection application will be required and this can take approximately 6-12 months. It is, therefore, essential that you seek advice as early as possible.
This is only intended to be a summary and not specific legal advice. Should you require more information or would like to speak to us, please contact Zoe Hodge, or another member of the private client team.
